Pershad Tewari and Others vs Emperor

Mullick, J.—About 6 a.m. on the 21st November last Ram Rodhan in the course of a quarrel in his village received an injury on the head from the result of which he died at 2 o''clock on that night in the hospital at Chapra. Within four hours of the assault his son Awadh Bihari lodged an information before the Sub-Inspector of Mirzapur thana which is about 7 miles away stating that early in the morning a buffalo, belonging to the appellant Kuldip had trespassed into the mustard field of his father and that his father had seized the buffalo for the purpose of impounding it. Kuldip came and protested and there was then a struggle. The appellant Ram Prasad, who is the brother, and the appellant Nathuni, who is the nephew of Kuldip, were standing by with lathis and came to the assistance of Kuldip. The result was that Ram Bodhan was struck by Ram Prasad and Nathuni on the head. 5 or 7 times. Awadh Bihari who was in his house 63 paces off, came up running and Kuldip gave him a thrust with the spear head of his lathi in the forearm Thereupon the appellants went home with the buffalo and Ram Bodhan was carried home by his relatives and by prosecution witness Ram Parsan Ojha. That was the story put forward by Awadh Bibari in his first information to the police.

At or about the same time that Awadh Bihari lodged his information, the appellants Ram Prasad and Nathuni also appeared at the thana and laid a counter information to the effect that at 6 a.m. that morning the wife of Ram Prasad had had a quarrel with the wife of Ram Bodhan in a rahar field to the east of Ram Prasad''s house and that Ram Bodhan, Awadh Bihari and Awadh-Bihari''s brothers Mahadeo and Sita Ram, and Ram Bodhan''s brother Jeo Bodhan had come to the place with lathis and that when Ram Prasad and Nathuni interfered to protect Ram Prasad''s wife, they assaulted Ram Prasad most severely. Nathuni was also alleged to have been assaulted at the same time. Strangely, how Ram Bodhan and Awadh Bihari came by their injuries was neither asked nor explained.

After recording the two informations, the Sub-Inspector sent Ram Bodhan, who had been brought on a stretcher by Awadh Bihari, to the Chapra hospital. He also sent Awadh Bihari, Ram Prasad and Nathuni to the same place. The Sub-Inspector arrived at the place of occurrence on the evening of the same day. On the following morning he began an investigation, but it does not appear that he did anything substantial. At 10 a.m. he received news that Ram Bodan had died in hospital the previous night. But although the case had thus assumed a graver aspect he did not consider it his duty to make any serious investigation and he left the village that night. On the 23rd or 24th he did not go to the village at all and I must express my surprise that in a case of this description where there was a complaint and a counter-complaint and where everything depended upon a speedy investigation for ascertaining which side was telling the truth, the police took no action whatever for two days, However, on the 25th November the Sub-Inspector returned and took up the investigation in earnest. In the result he decided upon sending up the appellants for trial and upon keeping the counter case pending till the disposal of this case.

Now the case must be decided upon the evidence adduced for the prosecution. The defence have called no evidence and have as usual run a grave risk in not doing so, but it seems hopeless to impress upon those, who are accused of serious charges in the Sessions Court, that it is necessary when they have a counter case to give some substantive evidence in support of it and that it is generally most dangerous for them to rely on the chance of finding discrepancies and loopholes in the prosecution evidence. However, it is fortunate for the appellants in this case that there are circumstances in the prosecution evidence which induce us to hold that the real assault took place not under a mohua tree near the mustard field but near the well to the east of Ram Prasad''s house as alleged by the defence.

The prosecution witnesses are first of all a man named Bansi. He states that he was going out for a necessary purpose early in the morning and he saw the assault. On the morning of the 22nd when the Sub-Inspector took up the investigation he declined to make any statement whatsoever though pressed to do so. He did not show the Sub-Inspector the mahua tree where two drops of blood were found on the 25th November by the Sub-Inspector. It is strongly contended on behalf of the prosecution that the presence of these two blood stains at that place conclusively establishes the truth of the prosecution story. But the unfortunate part of it is that Bansi did not at the earliest moment disclose this important piece of evidence before the police. On the contrary the Sub-Inspector states that Bansi and Awadh Bihari''s brother Mahadeo and the appellant Kuldip went with the Sub-Inspector to the well and there pointed out large patches of blood on the ground and that they allowed the Sub-Inspector to take it as admitted that the well was the place where the fatal assault was committed. In these circumstances it is impossible to accept Bansi''s present statement that nothing took place at the well and that Ram Bodhan and Awadh Bihari received their injuries near the mahua tree. The distance between the two places is not less than 97 paces and there can be no ground for contending that the places were so close that the discrepancy was not considered by Bansi to be material.

The next witness for the prosecution is Ram Parsan Ojha. This witness states that he also was going out for a necesSary purpose and when he was at a distance of 15 or 16 laggas from Ram Bodhan he saw Ram Prasad and Nathuni striking him 4 or 5 times on his head with their lathis. He says that Ram Bodhan spun round on receiving the first blow and that the other blows were delivered after he fell. According to him Awadh Bihari arrived after his father fell and received his injury because he remonstrated.

The remaining eyewitness is a Rajput named Kali Singh. Now this man states that he was coming from his village which is to the north of Nautan to fetch some labourers whom he wished to employ. He also corroborates Ram Parsan; but it is evident that he and the other two witnesses have attempted in the Sessions Court to make a much more definite case against Ram Prasad than they did before the police. They now stated that they are confident that Ram Prasad struck the fatal blow; but before the police they were not quite clear that Ram Prasad struck the fatal blow and the suggestion then made was that Nathuni and Ram Prasad were responsible jointly for the injury from which Ram Bodhan died.

In the case of Ram Parsan and Kali Singh, the same difficulty arises as to the occurrence at the well. They ignore all knowledge of any assault at that place and it is clear that they cannot be accepted as impartial witnesses who have come forward to tell the whole truth. Evidence has been given that on the 17th November Awadh Bihari had impounded two cows belonging to Kuldip and that on the 21st October Awadh Bihari''s brother Sitaram had impounded another cow belonging to Kuldip. An attempt was made to show that the pound keeper was perjuring himself but I do not think that attempt has succeeded. In my opinion the learned Judge was right in accepting the allegation that the feelings between the parties had been strained for some time and that shortly before the occurrence Awadh Bihari''s family had twice seized Kuldip''s cattle and impounded them. That, however, was not the immediate motive for the occurrence of the 21st November.

The question then is whether we are to accept the story told by Ram Prasad in the counter information. It is obvious that there was no delay in putting forward this story, and, reading the account, it seems to me to be a much more natural one than that told by Awadh Behari himself and to be more consistent with the circumstances proved in this case. The allegation is that 2� years ago Ram Prasad was suspected of an intrigue with one of the daughters of Ram Bodhan in consequence of which he had to go away to Calcutta. He had returned from Calcutta three months before the occurrence, but the old feud was still continuing and on the morning in question a sudden quarrel broke out between the wife of Ram Bodhan and the wife of Ram Prasad. I do not think a story of this kind would have been easily invented having regard to the fact that the appellants are brahmins by caste. Awadh Bihari himself and the other prosecution witnesses stoutly deny that Awadh Bihari had a sister called Sudama and that any such intrigue was ever suspected. He maintains that he had two sisters both of whom died 8 or 10 years before the occurrence. The concoction of a story of this kind requires time and as there was no delay at all in going to the police, I think on the whole that it furnishes a better explanation for the assault than that put forward by the prosecution. That being so, the question is whether the blood patches near the well were the result of a fight as alleged by the defence. On this point we have the fact that Ram Prasad had no less than 11 injuries, 3 of which were lacerated wounds. His nose appears to have been very severely damaged and the other two lacerated wounds must have also bled considerably. Nathuni had three injuries, one of which was a lacerated wound, and although it had been contended by the Crown that the above injuries were not sufficient to cause copious bleeding, I think the evidence establishes that the blood marks at the well were due to Ram Prasad''s and Nathuni''s injuries.

On the other hand it is in evidence that Ram Prasad died of a fracture of the skull and that there was no external wound from which any blood could have flowed. The only injury on his side from which blood could have come was Awadh Bihari''s which was a trifling one and which certainly could not have produced the copious patches which the Sub-Inspector found near the well. On 25th November two small spots of blood under the mahua tree were pointed out to the Sub-Inspector. They were about the size of a 4 anna bit each and the earth was scraped up and sent to the Chemical Examiner and the report is that they were caused by human blood. But it has to be remembered that on 22nd November when the Sub-Inspector first came to the village, Bansi did not point either the place or the marks to him and in the circumstances the suggestion that the blood was subsequently put there for the purpose of creating evidence should, I think, be accepted. Therefore we have now the position that while the account given by the defence has much to support it, the evidence for the prosecution is so deficient that it cannot be safely accepted for the purpose of convicting the appellants. If the prosecution case is substantially true, then they have only themselves to thank for its failure. In this connexion I think it necessary to point out that it was the duty of the Committing Magistrate to make some investigation into the truth of their story before he committed the appellants to the Sessions Court. It is not sufficient for Committing Magistrates to say that a prima facie case has been made out and thus to relieve themselves of further responsibility. If the police did not send up all the material witnesses, it was the Committing Magistrate''s duty to examine them himself in order to determine which side was speaking the truth. Here two clear cut cases were put forward by the respective sides, and from the police diaries we find that there were apparently independent witnesses to support the account given by the appellants and the learned Magistrate might with very little trouble have reached the conclusion that it was advisable to try the counter case first and to keep the present case pending. If that procedure had been adopted, the appellants would either have been discharged or committed for trial with all the material evidence at the service of the Sessions Court. Therefore in these circumstances being unable to say that the case put by the prosecution is a true account of the manner in which Ram Bodhan came by his injuries I think there must be an acquittal. The learned Judge has set out the various submissions made to him at great length, but he has not met them by an adequate discussion of the evidence nor referred to the discrepancies between the depositions and the statements before the police, nor has he considered the question whether having suppressed a material part of the prosecution story the eye-witnesses on whom he relies can be trusted in respect of the assault upon Ram Bodhan. He thinks, and evidently the assessors also think so, that the assault took place in both places. But of this there is no evidence at all and we cannot proceed upon mere conjecture.

The result therefore is that the convictions and the sentences will be set aside and the appellants will be acquitted and set at liberty.

Jwala Prasad, J.

I agree.